Hunter v. Colvin

Filing
18

DECISION AND ORDER denying 10 Plaintiff's Motion for Judgment on the Pleadings; granting 13 Commissioner's Motion for Judgment on the Pleadings; and dismissing the complaint in its entirety with prejudice. (Clerk to close case.). Signed by Hon. Michael A. Telesca on 2/8/18. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ANTHONY HUNTER,
Plaintiff,
1:15-cv-00610-MAT
DECISION AND
ORDER
-vsNANCY A. BERRYHILL, Acting Commissioner
of Social Security,
Defendant.
I.
INTRODUCTION
Represented
by
counsel,
Anthony
Hunter
(“Plaintiff”)
has
brought this action pursuant to Titles II and XVI of the Social
Security Act (“the Act”), seeking review of the final decision of
the Acting Commissioner of Social Security1 (“Defendant” or “the
Commissioner”) denying his applications for disability insurance
benefits (“DIB”) and supplemental security income (“SSI”).
This
Court has jurisdiction over the matter pursuant to 42 U.S.C.
§ 405(g). Presently before the Court are the parties’ competing
motions for judgment on the pleadings pursuant to Rule 12(c) of the
Federal Rules of Civil Procedure. For the reasons set forth below,
Plaintiff’s motion is denied and Defendant’s motion is granted.
1
Nancy A. Berryhill replaced Carolyn W. Colvin as Acting Commissioner of
Social Security on January 23, 2017. The Clerk of the Court is instructed to
amend the caption of this case pursuant to Federal Rule of Civil Procedure 25(d)
to reflect the substitution of Acting Commissioner Berryhill as the defendant in
this matter.
II.
PROCEDURAL BACKGROUND
In
April
2012,
Plaintiff
protectively
filed
a
Title
II
application for DIB and a Title XVI application for SSI, alleging
disability beginning November 6, 2010, due to a heart condition,
chest pain, depression, sleep apnea, arthritis in his hands,
tendinitis in his feet, a steel rod in his right arm, and shoulder
problems.
Administrative
Plaintiff’s
applications
Transcript
were
(“T.”)
initially
at
denied
305-319,
and
he
337.
timely
requested a hearing, which was held before administrative law judge
(“ALJ”) Marilyn Zahm on June 25, 2013 and October 28, 2013.
T. 44-
163. On February 13, 2014, the ALJ issued an unfavorable decision.
T. 14-43. Plaintiff’s request for review was denied by the Appeals
Council on May 14, 2015, making the ALJ’s decision the final
decision of the Commissioner.
T. 1-6. Plaintiff then timely
commenced this action.
III. THE ALJ’S DECISION
The
ALJ
applied
the
five-step
sequential
evaluation
promulgated by the Commissioner for adjudicating disability claims.
See
20
C.F.R.
§
404.1520(a).
Initially,
the
ALJ
found
that
Plaintiff met the insured status requirements of the Act through
December 31, 2012.
T. 20.
At step one, the ALJ found that
Plaintiff had not engaged in substantial gainful activity from
November 6, 2010, the alleged onset date. Id.
At step two, the ALJ determined that Plaintiff had the severe
impairments of asthma, shoulder pain, arthritis, sleep apnea,
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depressive disorder, and anxiety disorder, and the non-severe
impairments of heart condition, boils, and substance abuse.
Id.
At step three, the ALJ considered Plaintiff’s impairments and
found
that,
singly
or
in
combination,
they
did
not
medically equal the severity of a listed impairment.
meet
or
Id.
In
particular, the ALJ considered Listings 1.02 (dysfunction of a
major weight-bearing joint due to any cause), 3.03 (asthma), 3.10
(sleep-related breathing disorders), 12.04 (affective disorders),
12.06 (anxiety-related disorders), and 12.09 (substance addiction
disorders). Id.
Prior to proceeding to step four, the ALJ determined that
Plaintiff has the residual functional capacity (“RFC”) to perform
light work as defined in 20 C.F.R. 404.1567(b) and 416.967(b), with
the
following
additional
limitations:
must
avoid
exposure
to
concentration of fumes, odors, gases, dusts, or poor ventilation;
can push and pull occasionally; can occasionally climb, balance,
stoop, kneel, crouch, and crawl; can have occasional contact with
others; is limited to simple, routine work; forward elevation of
the right upper extremity is limited to 80 degrees and forward
elevation of the left upper extremity is limited to 90 degrees.
T. 22.
At step four, the ALJ determined that Plaintiff was incapable
of performing his past relevant work.
T. 34.
At step five, the
ALJ relied on a vocational expert’s testimony to find that there
are other jobs that exist in significant numbers in the national
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economy
and
state-wide
that
Plaintiff
can
perform,
including
inspector, assembler of electrical accessories, and office helper.
T. 34-25.
The ALJ accordingly found that Plaintiff was not
disabled as defined in the Act.
IV.
T. 35.
DISCUSSION
A.
SCOPE OF REVIEW
When considering a claimant’s challenge to the decision of the
Commissioner denying benefits under the Act, a district court must
accept the Commissioner’s findings of fact, provided that such
findings are supported by “substantial evidence” in the record.
See 42 U.S.C. § 405(g) (the Commissioner’s findings “as to any
fact, if supported by substantial evidence, shall be conclusive”).
Although the reviewing court must scrutinize the whole record and
examine evidence that supports or detracts from both sides, Tejada
v. Apfel, 167 F.3d 770, 774 (2d Cir. 1998) (citation omitted),
“[i]f there is substantial evidence to support the [Commissioner’s]
determination, it must be upheld.” Selian v. Astrue, 708 F.3d 409,
417 (2d
Cir.
substantial
2013).
evidence
conclusions of law.”
“The
does
deferential
not
apply
standard
to
the
of
review
for
Commissioner’s
Byam v. Barnhart, 336 F.3d 172, 179 (2d Cir.
2003).
In this case, Plaintiff argues that remand is required because
(1) the ALJ violated the treating physician rule in failing to
accord controlling weight to the opinion of treating physician
Dr. Winston G. Douglas, and (2) the ALJ was unduly adversarial
-4-
towards Plaintiff,
hearing.
thereby
depriving
him
of
a full
and fair
For the reasons set forth below, the Court finds these
arguments without merit.
B.
The ALJ did not Violate the Treating Physician Rule
Plaintiff’s first argument is that the ALJ erred in affording
less than controlling weight to Dr. Douglas’ opinion. Dr. Douglas,
Plaintiff’s
primary
care
physician,
submitted
a
letter
dated
March 30, 2012 in which he stated that Plaintiff had a history of
chronic
shoulder
depression,
that
pain,
fibromyalgia,
Plaintiff
has
alcohol
difficulty
dependency,
functioning
due
and
to
chronic pain, and that Plaintiff “has not been able to work due to
his underlying illness.”
T. 540.
On May 3, 2013, prior to the administrative hearing, the ALJ
submitted 14 multi-part, written interrogatories to Dr. Douglas,
seeking additional information regarding Plaintiff’s functioning.
T. 435-442. In these interrogatories, the ALJ asked Dr. Douglas to
specifically identify the impairments for which he had treated
Plaintiff and to identify the objective signs of each impairment,
among other questions.
T. 435.
Dr. Douglas did not reply to the
ALJ’s interrogatories.
In her decision, the ALJ gave little weight to Dr. Douglas’
opinion, explaining that it was unsupported by his treatment notes
and that Dr. Douglas had not responded to her questions seeking an
explanation for his statement.
T. 33.
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Plaintiff contends that
these did not constitute “good reasons” to afford Dr. Douglas’
opinion less than controlling weight.
The Court disagrees.
Under the Commissioner’s Regulations in effect at the time of
the ALJ’s decision, a treating physician’s opinion is generally
entitled to “controlling weight” when it is “well-supported by
medically acceptable clinical and laboratory diagnostic techniques
and is not inconsistent with the other substantial evidence in
[the]
case
record.”
20
C.F.R.
§
404.1527(c)(2);
see
also
Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003). An ALJ
may give less than controlling weight to a treating physician's
opinion
if
it
does
not
meet
this
standard,
but
must
“comprehensively set forth [his or her] reasons for the weight
assigned to a treating physician’s opinion.” Halloran v. Barnhart,
362 F.3d 28, 33 (2d Cir. 2004); 20 C.F.R. § 404.1527(c)(2) (“We
will always give good reasons in our notice of determination or
decision for the weight we give [the claimant’s] treating source’s
opinion.”).
The ALJ is required to consider “the length of the
treatment relationship and the frequency of examination; the nature
and extent of the treatment relationship; the relevant evidence,
particularly medical signs and laboratory findings, supporting the
opinion; the consistency of the opinion with the record as a whole;
and whether the physician is a specialist in the area covering the
particular medical issues” in determining how much weight to afford
a treating physician’s opinion. Burgess v. Astrue, 537 F.3d 117,
-6-
129 (2d Cir. 2008) (quotation marks, alterations, and citations
omitted); see also 20 C.F.R. §§ 404.1527(c)(1)-(6).
In
this
case,
the
Court
finds
that
the
ALJ
adequately
explained her reasons for affording limited weight to Dr. Douglas’
opinion.
The Commissioner’s
Regulations specifically contemplate
that when a treating physician’s opinion is not “well-supported by
medically
acceptable
clinical
and
laboratory
diagnostic
techniques[,]” 20 C.F.R. § 1527(d)(2), an ALJ is not bound to give
it
controlling
weight.
Here,
as
the
ALJ
correctly
found,
Dr. Douglas’ opinion that Plaintiff was totally disabled was
unsupported by the objective medical evidence.
The objective medical evidence of record in this case is not
consistent with the severe restrictions identified by Dr. Douglas.
Cardiac testing by cardiologist Dr. Kenton Forte on February 1,
2010,
showed
appropriate
heart
rate
arrhythmias, and no cardiac symptoms.
response,
T. 529.
no
malignant
Dr. Forte assessed
Plaintiff with good work tolerance and mildly reduced functional
capacity. Id. An echocardiogram performed in March 2012 showed no
new wall motion abnormalities, with retained left ventricular
systolic function and ejection fraction in excess of 60 percent.
T. 535.
Imaging
impairments.
of
Plaintiff’s
shoulder
showed
similarly
mild
An x-ray of Plaintiff’s left shoulder performed on
December 6, 2012 revealed no osseous or articular abnormality,
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while an x-ray of the left shoulder performed on January 11, 2013
showed only mild osteoarthritis of the left AC joint.
T. 762, 782.
Physical examinations performed by Dr. Forte and consultative
examiner Dr. John Schwab were also largely benign.
Dr. Forte
examined Plaintiff on both November 1, 2010 and March 15, 2012.
T. 527, 531.
On both occasions, he had a normal gait for his age,
no scoliosis or thoracic kyphosis, and 5/5 strength bilaterally in
his upper and lower extremities.
Id.
Dr. Schwab examined Plaintiff on July 31, 2012.
T. 558-61.
Plaintiff was in no acute distress, had a normal gait, and could
walk on his heels and toes without difficulty. T. 559.
He was
asked to squat, but stopped two-thirds of the way down, claiming
that his leg muscles had tightened.
Id.
Plaintiff’s chest and
lungs were clear to auscultation, with no significant chest wall
abnormality and normal diaphragmatic motion.
T. 560.
His heart
had a regular rhythm, with no murmur, gallop, or rub audible.
Id.
Plaintiff’s cervical spine showed full flexion, extension, lateral
flexion bilaterally, and full rotary movement bilaterally.
Id.
Plaintiff declined lumbar spine extension, and had lumbar spine
flexion of 30 degrees, with right lateral flexion of 10 degrees and
left lateral flexion of 20 degrees.
Id.
He had a full range of
motion in his elbows and forearms bilaterally, as well as in his
hips, knees, and ankles bilaterally.
Id.
His joints were stable
and non-tender, with no redness, heat, swelling, or effusion.
Id.
He had 5/5 strength in his lower and upper extremities, with no
-8-
cyanosis, clubbing, or edema.
Id.
were
strength
intact,
with
5/5
grip
His hand and finger dexterity
bilaterally.
T.
561.
Dr. Schwab noted that Plaintiff’s physical examination was not
consistent with his reported medical history, and opined that his
only restriction was a possible “mild restriction to reaching his
arms above shoulder height.”
Id.
Dr. Douglas’ treatment records do not provide significant
objective support for his opinion.
They largely memorialize
Plaintiff’s subjective complaints of pain but, as the ALJ correctly
noted, Plaintiff is not credible.
There is evidence in the record
that he was engaged in drug-seeking behavior - indeed, his treating
psychiatrist, Dr. Wendy Weinstein, noted at her initial evaluation
of Plaintiff that he thought she was going to prescribe him pain
medication and that he was disappointed when she explained she
could not do so.
T. 508.
Plaintiff also told inconsistent stories
about his daily activities to his various treatment providers, as
well as admitting that he lied to employers about his educational
history.
See T. 160-61.
As the ALJ further noted, Plaintiff
failed to follow up with referrals to pain management doctors,
alcohol treatment, and hand and orthopedic specialists. T. 33.
Under these circumstances, it was not error for the ALJ to find
Plaintiff’s subjective complaints of pain, swelling, and other
limitations not credible, and therefore not an appropriate basis
for
Dr.
Douglas’
opinion.
An
ALJ
is
not
required
to
give
controlling weight to a treating physician’s opinion if it is
-9-
“based largely upon [the claimant’s] subjective responses, which
were not themselves entirely credible.” Roma v. Astrue, 468 F.
App’x 16, 19 (2d Cir. 2012).
The ALJ also did not err in noting that Dr. Douglas did not
respond
to
regarding
her
request
Plaintiff’s
for
an
explanation
functioning.
Dr.
of
his
Douglas’
statement
letter
was
conclusory, and provided no narrative explanation or other support
for his assessment.
Courts in this Circuit have consistently held
that “lack of supporting detail and/or objective findings provides
a ... reason for affording [an] opinion less weight.”
Wright v.
Colvin, 2013 WL 3777187, at *15 (N.D.N.Y. July 17, 2013) (citing 20
C.F.R. §§ 404.1527(d)(3), 416.927(d)(3)) (“The more a medical
source
presents
relevant
evidence
to
support
an
opinion,
particularly medical signs and laboratory findings, the more weight
we will give that opinion. The better an explanation a source
provides
for
an
opinion,
the
more
weight
we
will
give
that
opinion.”). Dr. Douglas’ failure to provide an explanation for his
opinion was a valid consideration for the ALJ in determining what
weight it should be afforded.
McAninch v. Astrue, 2011 WL 4744411(W.D.N.Y. Oct. 6, 2011), on
which Plaintiff relies, is inapposite. In McAninch, the ALJ sent a
59-question questionnaire to the plaintiff’s treating physicians
without an explanation of why it was sent, and despite the fact
that at least one of those physicians had already provided a sevenpage report assessing the plaintiff’s functional limitations.
-10-
Id.
at *16-17.
that
it
Under those particular circumstances, the Court found
was
inappropriate
for
the
ALJ
to
afford
less
than
controlling weight to the treating physicians’ opinions based on
their failure to complete the follow-up questionnaire.
In this
case, unlike in McAninch, Dr. Douglas had provided only a foursentence letter, and had failed to explain the basis for his
opinion.
Moreover, the ALJ explained in her cover letter that the
interrogatories had been sent because she did not have enough
information to understand the basis for Dr. Douglas’ opinion.
These are fundamentally different circumstances than those that led
the Court to order remand in McAninch.
For all the reasons discussed above, the Court concludes that
the ALJ did not err in affording limited weight to Dr. Douglas’
opinion.
Accordingly, Plaintiff has not shown that remand is
warranted on this basis.
C.
The ALJ was not Unduly Hostile
Plaintiff’s second and final argument is that the ALJ was
unduly
hostile,
lacking fairness.
resulting
in
a
proceeding
that
fundamentally
Again, the Court disagrees.
“Before determining whether the Commissioner’s conclusions are
supported by substantial evidence . . . [the Court] must first be
satisfied that the claimant has had a full hearing under the . . .
regulations and in accordance with the beneficent purposes of the
[Social Security] Act.”
Moran v. Astrue, 569 F.3d 108, 112
(2d Cir. 2009) (internal quotation omitted and second alteration in
-11-
original).
“In the absence of . . . a full and fair hearing, the
Court cannot determine whether the ALJ’s conclusions are supported
by
substantial
development.”
evidence
and
thus
must
remand
for
further
Estrada v. Comm’r of Soc. Sec., 2014 WL 3819080, at
*4 (S.D.N.Y. June 25, 2014).
Here, Plaintiff contends, based on McAninch, that the ALJ, by
sending interrogatories to Dr. Douglas, evidenced such hostility
towards Plaintiff as to deprive him of a full and fair hearing.
This argument lacks merit.
As the Court explained above, the
circumstances in this case are fundamentally different than those
in McAninch, inasmuch as Dr. Douglas had failed to provide any
explanation
whatsoever
for
his
assessment
of
Plaintiff’s
functioning.
The ALJ has an affirmative obligation to develop the
record in every case, and the Court is not persuaded that her
attempt to do so here was evidence of hostility towards Plaintiff
or of an attempt to undermine his claim.
Plaintiff
characterizes
argues
as
small
that
the
ALJ
inconsistencies
highlighted
in
his
what
he
testimony,
and
contends that this is further evidence of her alleged bias.
This
argument
with
is
also
without
merit.
The
ALJ
was
charged
evaluating Plaintiff’s credibility, and it was therefore highly
relevant that Plaintiff’s testimony was inconsistent with his past
statements.
The Court disagrees with Plaintiff’s assertion that
the inconsistencies identified by the ALJ had limited relevancy -
-12-
when the issue is credibility, inconsistencies are relevant by
definition.
In sum, the Court, having reviewed the record, does not find
any evidence of hostility or inappropriate bias on the part of the
ALJ.
Accordingly, the Court finds that Plaintiff was afforded a
full and fair hearing, and that remand is not warranted.
V.
Conclusion
For the foregoing reasons, plaintiff’s motion for judgment on
the pleadings (Docket No. 10) is denied and the Commissioner’s
motion for judgment on the pleadings (Docket No. 13) is granted.
Plaintiff’s complaint is dismissed in its entirety with prejudice.
The Clerk of the Court is directed to close this case.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
_______________________
HON. MICHAEL A. TELESCA
United States District Judge
Dated:
February 8, 2018
Rochester, New York
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